现代刑法中报复主义残迹的清算

以“恶”为主线的传统刑法在相当程度上具有报复色彩,报复主义起源于人性复仇本能,受到人类社会的相互性原则限制后,流变为罪刑均衡的报应论。但个人的复仇本能常被国家利用,国家权威本能更易增加新的复仇性,进而把罪犯视为社会的敌人。报复主义在解决犯罪的同时又酝酿着新的犯罪,现代刑法要特别警惕报复主义借国家权威主义哲学观发作。

Eliminating the Dregs of Retaliationism in Modern Criminal Law

Traditional criminal law that centers on "vice" tends to assume the color of retaliation.Retaliationism originates from human revenge instincts and,being restricted by reciprocity principles of society,it gradually evolves into retribution that maintains punishment imposed as repayment for the offense committed.However,a state tends to take advantage of an individual's instinct of revenge and within the state's authority it is easy to play on the hatred and revenge of criminals,thus,criminals are deemed enemies of society.While solving crimes,retaliationists may ferment a new crime,so in modern criminal law we must guard against the recurrence of retaliationism blended with state authority.